Q: I would like an explanation, not an excuse. My stepson was ordered to
pay child support and faithfully paid it on time. Then he got into trouble with the
law and was sent to prison. He is now indigent, but the public defenders office won't
work with him to temporarily freeze all child support obligations so that an arrearage
doesn't build up while he is in prison. Consequently, when he gets out of prison, he is in
danger of being locked up again, this time in "debtors prison" for non-payment of child
support. Neither he nor we can afford a lawyer. Do you have any "fatherly advice" on
this matter?

A: A number of years ago, Congress passed a law making it illegal for any
court to reduce child support obligations retroactively. The purpose of this law was
to prevent a non-custodial parent from avoiding paying past child support obligations by
intentionally becoming unemployed. Unfortunately, this law -- as is the case with many
laws passed by Congress -- has had some unintended, and very negative, consequences.

As pointed out by this letter writer, circumstances can occur which make it difficult,
if not impossible, for non-custodial parents to fulfill his or her child support obligations. For
example, when a non-custodial father loses his job, his child support obligations do not
ordinarily cease. Hence, when he does find work, he often has built up past due child
support obligations, technically known as an arrearage. Now the father has to send double,
triple or even quadruple the amount of money mandated by the original child support order
so that he can get current with his child support obligations. If he does not, he runs the risk
being held in contempt of court and possibly even being sent to jail.

But the same limited resources that are being used to pay child support are now not
available to pay his own rent or car payments. Without a home or a car, he may be at-risk
for losing his new job. If he loses his new job, and has to stop paying child support once
again, an additional arrearage will build up only compounding his problem.

Can you say "Catch 22"?

A similar situation arises when a non-custodial parent is sent to prison. Since inmates
do not ordinarily earn income, it is not possible for them to pay child support while in prison
(unless, of course, they have outside assets, such as money in a savings account). But unless
the inmate stays current with his child support obligations, upon release he will have built up
a large past-due child support obligation.

Fortunately, there is a solution. While courts can not retroactively
reduce past-due child support obligations, courts can prospectively suspend child support
obligations given sufficient justification, such as incarceration.

The trick is to petition the court as soon as possible upon finding
yourself unable to
pay child support due to a change in personal circumstances. This is
because the point in
time when the court can begin to suspend payments is not when it hears the
case, but when
the petition was initially filed with the court.

Ideally, one should use a lawyer to do this. But many indigent
non-custodial parents
can't afford to do so (after all, if an inmate could afford a lawyer, he
could afford to pay
child support). In such cases, the court allows something called a pro se
petitions, a Latin
phrase meaning "for oneself," referring to a person who must represent
himself without a
lawyer in a legal proceeding. Courts are generally pretty lenient when it
comes to accepting
a pro se petition, especially from individuals in prison. A simple letter
to the court usually
suffices.

So here's my advice: have your stepson write a letter immediately to
the court of
relevant jurisdiction (that is, the court that either issued his child
support order or has
jurisdiction over its enforcement) declaring that he is indigent and in
prison, and requesting
that the court temporarily suspend his child support obligation. Of course,
before granting
the request, the court may require proof that your stepson has no known
assets with which he
could pay child support. And even if the court grants his request to
temporarily suspend his
child support obligation, he will still have to pay any existing arrearage
upon his release.

I know how frustrating these situations can be. But it is important to
remember that
the one innocent in these circumstances is the child. Your stepson chose to
have sex with the
mother resulting in their making a baby. He also chose to break the law,
for which he now
finds himself in prison.

So while I sympathize with his situation and support his request to
temporarily
suspend his child support obligations (assuming he has no known assets), I
hope that he will
use his time in prison to re-dedicate himself to ensuring that upon his
release, he will do
everything he can to ensure the economic and psychological well-being of his
child. After
all, what his child needs most is neither an explanation nor an excuse, but
a
father.

New JWR contributor Dr. Wade F. Horn is President of the
National Fatherhood Initiative and
co-author of The
Better Homes and Gardens New Father Book. Send your question about dads,
children or
fatherhood to him C/O JWR